JESSICA HURLEY v. NIKETA GOVINDANI, M.D. (L-1260-21, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1954-21
JESSICA HURLEY,
Plaintiff-Respondent,
v.
NIKETA GOVINDANI, M.D.,
Defendant-Appellant.
_________________________
Submitted July 11, 2022 – Decided August 2, 2022
Before Judges Currier and DeAlmeida.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Passaic County,
Docket No. L-1260-21.
Ruprecht Hart Ricciardulli & Sherman, LLP, attorneys
for appellant (Michael R. Ricciardulli, of counsel and
on the briefs; Brion D. McGlinn, on the briefs).
Alfred V. Acquaviva, attorney for respondent.
PER CURIAM
In this medical negligence action, on leave granted, we consider whether
the physician who issued the affidavit of merit (AOM) met the requirements
under the New Jersey Medical Care Access and Responsibility and Patients First
Act (PFA), N.J.S.A. 2A:53A-37 to -42. Although the certifying physician had
retired from his forty years of practice in New York as an
obstetrician/gynecologist (OB/GYN) two years prior to the accrual of plaintiff's
claims, he continued to volunteer as an OB/GYN at a clinic in Florida. The trial
court found the AOM compliant with the statute. Because we conclude the
certifying physician was board certified in the same specialty as defendant and
was "devoting the majority of his professional time" to the practice of th at
specialty, we affirm.
Plaintiff alleges defendant deviated from the standard of care in her
prenatal and postpartum care, specifically that defendant failed to appreciate
signs of pre-eclampsia during plaintiff's pregnancy in 2019. Plaintiff served a
timely AOM authored by Leonard A. Benedict, M.D. Thereafter, defendant
moved to dismiss the complaint, asserting Dr. Benedict was not qualified to
issue the AOM.
The court conducted a N.J.R.E. 104 hearing during which Dr. Benedict
described his qualifications and explained his current professional work. Dr.
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Benedict became a licensed physician in 1973 and was board certified in
OB/GYN in 1981. The doctor held privileges at North Shore University
Hospital in New York for approximately forty years. He delivered thousands of
babies and performed hundreds of OB/GYN procedures.
Dr. Benedict retired from North Shore Hospital in 2017. He moved to
Florida and began volunteering at a clinic three times a month for a total of
fifteen hours. Dr. Benedict is licensed in New York and Florida and maintains
his board certification. He previously served as chairman of the OB/GYN
department at New York Institute of Technology, College of Osteopathic
Medical School, and was a lecturer there. He currently undertakes work as an
expert witness, reviewing four to five cases per year. The doctor testified he
spends more time at the clinic than performing expert witness work or on other
professional activities.
At the clinic, the doctor sees pregnant patients, performing examinations
and reviewing the patients' files. He also orders testing and evaluates results of
ultrasounds and other tests. The doctor refers patients to a particular hospital
when a procedure is needed or for the delivery of a baby. He stated he had not
delivered a baby since 2016. In addition, Dr. Benedict provides gynecological
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care at the clinic, which includes diagnosing fibroids, ectopic pregnancies, and
other related OB/GYN issues.
On December 15, 2021, the trial court denied defendant's motion to
dismiss. The court found that Dr. Benedict was practicing as an OB-GYN at the
clinic, and although he does not deliver babies, he provides the same type of
prenatal and postpartum care that defendant rendered to plaintiff. The court also
noted that although Dr. Benedict only performed fifteen hours of clinical work
per month, his clinical practice "involves more time than what he does . . . being
a medical expert." Therefore, the court found that Dr. Benedict's work at the
clinic satisfied the statute's requirement that an expert conduct the "majority of
his professional time in active clinical practice." The judge stated that Dr.
Benedict "is qualified as an expert in the area of obstetrics and gynecology and
would be qualified to offer this affidavit of merit and would likewise be qualified
to testify at the time of trial."
Defendant moved for reconsideration. The trial court denied the motion
on January 21, 2022. In addressing defendant's argument that Dr. Benedict does
not devote a majority of his professional time to active clinical practice , the
court stated that "[Dr. Benedict's] status as retired from his private practice does
not mean he is not devoting a majority of his professional time to active clinical
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practice." In addition, although the doctor was no longer delivering babies, he
remained actively engaged in an OB/GYN practice. And because plaintiff's
claims of negligence arose out of defendant's prenatal and postpartum care,
rather than labor and delivery, the allegations fell within Dr. Benedict's current
practice and expertise.
On appeal, defendant asserts the trial court erred in interpreting the statute
governing the preparation of an AOM, N.J.S.A. 2A:53A-26 to -29, and the PFA.
Our review of a trial court's interpretation of a statute is de novo. See Meehan
v. Antonellis, 226 N.J. 216, 230 (2016).
In any action for damages for malpractice or negligence by a licensed
professional, plaintiff must provide defendant, within sixty days of defendant's
answer,1 an affidavit of an appropriate licensed professional stating that "there
exists a reasonable probability that the care, skill or knowledge exercised or
exhibited in the treatment, practice or work that is the subject of the complaint,
fell outside acceptable professional . . . practices." N.J.S.A. 2A:53A-27. The
purpose of the affidavit of merit statute "is laudatory—to weed out frivolous
claims against licensed professionals early in the litigation process." Meehan,
1
The court may grant one additional period, not to exceed sixty days, to file the
affidavit of merit for "good cause." N.J.S.A. 2A:53A-27.
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226 N.J. at 228 (citing Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144,
146 (2003)).
In addition, a plaintiff must comply with the PFA. Under N.J.S.A.
2A:54A-41, a person may not give expert testimony or execute an affidavit of
merit regarding the appropriate standard of practice or care unless they are a
licensed physician who meets the following criteria:
(a) If the party against whom or on whose behalf the
testimony is offered is a specialist or subspecialist
recognized by the American Board of Medical
Specialties or the American Osteopathic Association
and the care or treatment at issue involves that specialty
or subspecialty recognized by the American Board of
Medical Specialties or the American Osteopathic
Association, the person providing the testimony shall
have specialized at the time of the occurrence that is the
basis for the action in the same specialty or
subspecialty, recognized by the American Board of
Medical Specialties or the American Osteopathic
Association, as the party against whom or on whose
behalf the testimony is offered, and if the person against
whom or on whose behalf the testimony is being offered
is board certified and the care or treatment at issue
involves that board specialty or subspecialty
recognized by the American Board of Medical
Specialties or the American Osteopathic Association,
the expert witness shall be:
....
(2) a specialist or subspecialist recognized by the
American Board of Medical Specialties or the
American Osteopathic Association who is board
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certified in the same specialty or subspecialty,
recognized by the American Board of Medical
Specialties or the American Osteopathic Association,
and during the year immediately preceding the date of
the occurrence that is the basis for the claim or action,
shall have devoted a majority of his professional time
to either:
(a) the active clinical practice of the same health care
profession in which the defendant is licensed, and, if the
defendant is a specialist or subspecialist recognized by the
American Board of Medical Specialties or the American
Osteopathic Association, the active clinical practice of that
specialty or subspecialty recognized by the American
Board of Medical Specialties or the American Osteopathic
Association; or
(b) the instruction of students in an accredited medical
school, other accredited health professional school or
accredited residency or clinical research program in the
same health care profession in which the defendant is
licensed, and, if that party is a specialist or subspecialist
recognized by the American Board of Medical Specialties
or the American Osteopathic Association, an accredited
medical school, health professional school or accredited
residency or clinical research program in the same
specialty or subspecialty recognized by the American
Board of Medical Specialties or the American Osteopathic
Association; or
(c) both.
[N.J.S.A. 2A:53A-41(a) (emphasis added)].
Defendant contends Dr. Benedict was not engaged in "the active clinical
practice" of the OB-GYN specialty as required under N.J.S.A. 2A:53A-41(a).
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The statute does not define or set forth parameters for "the active clinical
practice" of a specialty.
In interpreting a statute, courts must discern and effectuate the
Legislature's intent. Meehan, 226 N.J. at 232. The best indicator of that intent
is the statutory language itself. DiProspero v. Penn, 183 N.J. 477, 492 (2005).
Therefore, we begin with the words of the statute and ascribe to them their
ordinary meaning. Mason v. City of Hoboken, 196 N.J. 51, 68 (2008).
As stated, the purpose of the AOM statute is to "put to rest unmeritorious
and frivolous malpractice lawsuits at an early stage of litigation while allowing
worthy claims to proceed through discovery, and, if warranted, to trial." Knorr
v. Smeal, 178 N.J. 169, 176 (2003) (citing Palanque v. Lambert-Woolley, 168
N.J. 398, 404 (2001)). Therefore, a plaintiff only needs to make a threshold
showing that their claim is meritorious. Our Supreme Court has stated that there
is no legislative interest in having the AOM statute bar a plaintiff's claims made
in good faith. See Buck v. Henry, 207 N.J. 377, 393 (2011). See Ryan v. Renny,
203 N.J. 37, 51 (2010) (stating the legislative intent of the AOM statute was not
to create a "minefield of hyper-technicalities in order to doom innocent litigants
possessing meritorious claims").
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The purpose of the additional requirements imposed on an AOM under the
PFA is to establish "qualifications for expert witnesses in medical malpractice
actions" and to ensure that a party's expert has "the same type of practice and
possess the same credentials . . . as the defendant health care provider, unless
waived by the court." Meehan, 226 N.J. at 231 (citing Assembly Appropriations
Comm., Statement to A. 50 2-3 (Mar. 4, 2004)); See also Buck, 207 N.J. at 389(holding the basic principle behind N.J.S.A. 2A:53A-41 is that "the challenging
expert" who executes the affidavit of merit should be "equivalently -qualified"
as the defendant physician).
Defendant does not dispute that Dr. Benedict meets the PFA's initial
requirement under 41(a)––that he is a specialist recognized by the American
Board of Medical Specialties. Defendant instead challenges the expert's
qualifications under 41(a)(2)(a), asserting that fifteen hours of volunteer work
per month at a clinic is not "devot[ing] a majority of his professional time to
. . . (a) the active clinical practice of the same health care profession in which
the defendant" specializes. N.J.S.A. 53A-41(a)(2)(a).
Although Dr. Benedict retired from his practice in New York, he continues
to practice in his medical specialty in Florida, albeit likely for a fraction of the
number of hours he previously worked. But the statute does not require the
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expert be paid for his medical services or that he perform his medical services
for a minimum number of hours per month. The statute requires an expert to
devote the "majority of [their] professional time" to "the active clinical practice
of the same health care profession in which the defendant" specializes. Ibid.Dr. Benedict devotes a majority of his professional time to the active
clinical practice of OB/GYN. He continues to be board certified in his specialty
in both New York and Florida. Under the circumstances presented here, we are
satisfied Dr. Benedict met the requirements of N.J.S.A. 2A:53A-41 to permit
him to author an AOM. His qualifications and current practice meet the
Legislature's intent of ensuring that a party's expert is similarly credentialed as
the defendant physician. See Meehan, 226 N.J. at 231. Any contrast between
the expert's current work and defendant's practice will be fully explored at trial.
But it is not a barrier to Dr. Benedict issuing an AOM.
Affirmed.
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